A marijuana starter plant is for sale at a medical marijuana dispensary in Seattle, Washington, in this November 20, 2012 file photo. REUTERS/Anthony Bolante/Files (UNITED STATES — Tags: DRUGS SOCIETY HEALTH BUSINESS)
Jun 15, 2015
The Gazette - Marijuana is the third most popular recreational drug in America, behind alcohol and tobacco. It is estimated that nearly 100 million Americans use it.
But frankly, unless federal and state laws are changed, the answer is not at all.
Remember, marijuana still is illegal under federal law (the Controlled Substances Act) and Iowa law. In fact, even in those states that legalized marijuana years ago (Colorado and Washington), many employers continue to drug test for marijuana in the workplace.
Therefore, in an Iowa workplace, marijuana should be treated as any other illegal substance. That is, it should not be used, distributed, purchased or sold by anyone in your workplace.
Iowa employers should implement a comprehensive substance abuse policy that includes pre-employment, random, post accident or reasonable suspicion drug testing consistent with Iowa and federal laws.
The two most common questions that employment lawyers receive about marijuana in the workplace are:
1. What should an employer do if it suspects an employee comes to work under the influence? Answer: Follow your company drug use and drug testing policies consistently.
Under Iowa law, an employer may be liable for negligence in hiring and retaining an employee. It is a legal theory commonly used when companies hire or retain workers who commit criminal acts and harm co-workers or customers.
If an employer knows of an employee’s marijuana use, for example, and condoned it or looked the other way even though the employee was a forklift driver or someone holding a “safety sensitive” position, then the employer may be liable if someone is injured because of the employee’s impairment.
On the other hand, if the employer has a consistently enforced zero-tolerance policy toward drunk driving or drug use in company vehicles, you should be OK. Discuss this issue with your insurance carrier.
What about medical conditions such as anxiety, cancer, epilepsy or glaucoma that are occasionally treated with marijuana? To date, there have been several lawsuits in which employees have claimed protection under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act As Amended (ADAAA) for medical marijuana use.
Remember that the ADAAA explicitly does not protect employees who use illegal drugs. (Cannabis oil extract, or CBD, and which is free of any plant material, is legal in Iowa under the Medical Cannabidiol Act, but only for patients diagnosed with intractable epilepsy — and even then, it remains illegal to produce or sell cannabidiol in Iowa.)
On the other hand, under the ADAAA, illegal drug use does not include use of drugs taken under supervision by a licensed health care professional. Thus, if a doctor prescribed appropriate marijuana use, it could be excluded from the definition of illegal drug use under the ADAAA — but still probably could be illegal under federal law.
In fact, even in those states where marijuana use is legal, courts have supported employers’ efforts to maintain a drug-free workplace
. In Colorado, for example, one court held that the state’s marijuana “lawful activity” law did not protect an employee from termination after he tested positive for marijuana, despite his status as a licensed medical marijuana patient.
The court reasoned that because marijuana still is illegal under federal law, its use is not “lawful activity” receiving protection under Colorado law.
In another case, the Washington Supreme Court made it clear that under its recreational use statute, there was no public policy requiring employers to accommodate medical marijuana use even when the use occurred was outside of the workplace. It dismissed the plaintiff’s wrongful termination claim.
(The state of Washington later amended its statute to state the following: “Employers may establish drug-free work policies. Nothing in this chapter requires an accommodation for the medical use of cannabis if an employer has a drug-free workplace.”)
Finally, the U.S. Court of Appeals for the Sixth Circuit, headquartered in Cincinnati, also recently held that private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate use of medical marijuana in the workplace.
Here are some suggestions for Iowa employers to handle this increasingly common issue.
— Continue to comply with state and federal drug testing laws and regulations. Review your drug use and drug testing policies to ensure they clearly state your expectations regarding impairment, marijuana use outside of company time and drug testing.
— As noted, make sure you are prepared to consistently follow your stated procedures.
— Train your managers about confidentiality relating to sensitive employee information, including drug test results and requests for accommodations for medical conditions for which marijuana is prescribed — again, unlikely in Iowa unless the law is changed.